The clarion. [volume] (Jackson, Miss.) 1883-1888, 1887-09-21
The State V. J. 8. Hamilton and l.
II. Eubank.

II. Kubank.
On yesterday at the conclusion Of the
arguments of counsel, Chief Justice
Cooper promptly decided the matters
pending before him in the proceeding
by habeds corpus
He adhered to his former ruling SIS to
the conclusiveness of the judgment
rendered by Chancellor Peyton, and de
cided that the testimony taken at the
present hearing, did not make q case
authorizing him to grant the relief
sought by either of the REALTORS.
He said that while he had discretion
in the matter, it was not the kind of
discretion discussed by counsel, but 3
judicial discretion controlled by well
settled principles of law which were
obligatory and binding on him, and
which he could not escape except by
the exercise of arbitrary power. He did
not know of case where q defen-
dant had been granted bail by Judge
believing that the proof was evident
and the presumption great that CAPT
tai offense had been committed, unless
in exceptional states of case arising
tout of collateral matters. Once it i:
established that the offence is one which
ldeprives the defendant of the privilege
of bail, it devolves on him TO make
out the exceptional case, and if he fai
| in that there is no such discretion lodged
in the court as will authorize the con
sideration of other matters, such as tn
3 probability that the defendant will ap
!. pear for trial with or without bail. II
case where the proof is evident or thu
presumption great, the consequences ar
fixed by the Constitution, and may no
3 be avoided by the Courts unless in ex
: ceptional cases.
1t was further held that the action o
counsel for the prosecution, compliance
: of in the replication, must have bee
:, fraudulent, or of such character as t
2 deprive REALTORS of the benefit of materis
. exeulpatory testimony. The proof di
Q not meet the requirements. Judg
9 Cooper saw nothing cuipable in the cor
% duct of the States attorneys as disclose
by the testimony. They were nc
compelled to examine all the witnesse
put under the rule at their instance, an
the fact that certain witnesses had bee
put under the rule and had not bee
examined by the State, did not depri,
the REALTORS of the opportunity to hay
them summoned and examined, and the
had ample opportunity to examine the
out of court, after they were discharge
by the State. If the friends of relatol
who were active in searching for test
% mony of value to the defense, were sun
moned and put under the rule wron
fully, complaint should have been mad
to the Chancellor. 1t comes too la
= now.
20 AS Judge Cooper viewed it, the ca
was not different from any other case
sc newly discovered evidence. Due di
gence would have discovered this ey
dence pending the former investigate
Had there been shown fraud on t
part of the STATE, he would not ha
insisted on the strictest diligence by tt
M defence.
He believed that the bullet in the ar
90 should be removed, and was certs
the operation for its removal should n
o. be performed in the Jail where Ham
ton is now confined, which, from t
" testimony, was an unfit place for
lie prisoner charged with any sort of crir
x or in any condition of health. "But
ar said the court, "the operation is a simI
one, requiring cut an inch long Al
: an inch deep" Bad results might Fl
- low. The case presented is not differe
OF from what it would be if the operate
ed had already been performed and
D. ganQrenous tendency had manifest
ce itself, and the relator should ask
RS bail on account of the wound.
Is Under the decisions, the danger of p
a. manent injury must be probable a
N immediate and not merely possible
remote.
ne Relying on the testimony of l
n Yandell as to the sanitary condition
or the Jail at Yazoo City, Judge CooK
en- offered to make an order for Hamilto
CO confinement there with view to havi
~ the ball extracted.
ne Hamilton, through his counsel,
ne clined the offer.
Court then took a recess till 4;
: O'Clock in the afternoon to enable COT
SCI to prepare bill of exceptions as
preliminary to an appeal to the Suprel